Journal of Criminal Law and Criminology
Volume 29
Issue 4
November-December
Article 5
Winter 1938
Limits of Deterrence
Hans Von Hentig
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HAu s VoN HENT t
I.
The whole animal kingdom may be divided into terrorizers and terrorized specimen. Every living being flees harm. With tense senses an animal watches approaching or imminent danger. This tension emerges in consciousness as fear or fright, or however we may label the various features of behavior in risk-situations.
Fear is a danger signal. It is the psychic companion of certain physiological reactions which tend to three different shifts: seeking for help, flight or fight.
Fear does not in every case mean that the frightened animal will desist from its initial aims. Fear can produce, and often pro-duces a mere change of direction, a clever detour, or an aggressive protective reaction. Many animals have developed peculiar per-formances to give fear: by inflation of the body, by raising their quills, showing their teeth and so on.' In all these mechanisms appliances of deterrence are performed. Their end-as far as we can speak of ends in natural history-is to avoid a real fight, by displaying symptoms of superior strength.
A later development shows deterrence no longer coupled with the production of fear-causing movements, sounds and odors; in-stead a reduction takes place: the mere appearance or remem-brance of such a peril-bearer suffices to arouse associations of fear, flight and desistence. The agent of harm or damage need not coil-front the animbl. Experience, the retention of past pains, a kind of mental elaboration lead to the anticipation of future harm and corresponding precautions.
The process of deterrence has now become a complicated mental performance.' It is no more a simple affair of the sense-life, of a directly working, unmistakable optical or acoustical stimulus.
* Paper read at the meeting of the Association of American Law Schools
at Chicago, December 31, 1937.
t Professor of Criminal Law and Criminology, University of Colorado, formerly Professor of Criminal Law and Criminology, University of Bonn am Rhine.
I See Charles Darwin, the expression ,of the emotions in man and animals,
New York, 1924, pp. 104, 94, 116.
HANS VON HENTIG
The path from the deterrent starting-point to the poor brain is now a long, indirect one and studded with hindrances.
When one animal opposes another, it aims but at frightening this single specimen. In the highest animals, apes and men, herds or societies are formed, and here deterrence assumes a double-edged function. Besides the deterred individual other members of the multitude receive an impression of warning and deterrence. Human life is full of acts and mechanisms of deterrence. In education we punish children; by giving this punishment a cer-tain publicity-as for example in school life-we expect this bad ex-perience to influence other children and restrain them from similar deeds. Sometimes punishment does not seem necessary, or even useful, but we punish nevertheless, because we believe that im-punity might loosen the ties of discipline and obedience.
In politics deterrence is considered an indispensable instrument in the intercourse of civilized and less civilized nations. Arma-ments, being very material threats, are believed to promote or assure peace. Politics are in reality a continuous interplay of deterrent measures, undertaken today by this, tomorrow by that people.
Even the religious life and doctrine cannot do without deterrent images. Hell is the prototype of such a fright-giving device to con-trol and govern "homo sapiens."
The usual methods of deterrence proceed from the assumption that
1. Men know in every case what is harmful to them; 2. Men are in every case frightened by danger;
3. Men realize in every case the correct steps to avoid peril. All these suppositions assume the behavior of the average man under average conditions of life. In many cases they do not come true. The exceptions to the rule may be classified into physiolog-ical or normal stages of non-deterribility, and pathologphysiolog-ical stages of fearlessness. Let us glance at the first group.
When these mighty instincts enter into play the ordinary mechanisms of self-protection break down. If we should meet a. man, at the same time prudent and in ardent love, we should regard him as a poor and degenerate specimen. We would laugh at him and despise him.
The wrong inference of a criminal code which is based mainly on deterrence overlooks the fact that sexual tension is a frequent and repeated fact in the life of men and that these states of indif-ference to projections of fear coincide with the age of -the greatest physical ability and the time of strongest desires.
During the period of the most powerful anti-social tendencies deterrence is thus a weakened protective means.
It is utterly wrong to regard this fearlessness solely from the angle of legal infraction. The aggressiveness and the super-activity of the-sit venia verbo-ardor is of tremendous social value. The State exploits it for war and other dangerous enterprises. Behind the screen of millions of love-suits millions of grand constructive efforts are going on: to pass an examination, to get a job, to obtain a promotion, to make an invention, to write a book. Briefly: to overcome by assault the greatest barriers and to build up a nesting place.
You need but turn your attention to the vocabulary of love to recognize that it consists mainly in emancipation from the fear, fear of binding authorities and constraining forces: family, moral and other social forces. Later on we shall meet further anti-fright poisons, but love is their greatest proxy.
The rearing instincts are the next group of human impulses not affable to suggestions of fear. Even the weakest animal-mother attacks the aggressor who threatens her young. The bio-chemical changes, produced by motherhood, seem to make functionally in-operative the brain-regions where fear is located.
The stages of love and motherhood demonstrate a strange fact. Fear can be switched off, and it is under special circumstances actually switched off. The human brain gets color-blind to danger and menace; or can be made so. No psychologist or psychiatrist has ever investigated those strange forms of passing madness, which we call despration. It seems to be a sudden and stormy nervous outbreak, coupled with absolute fearlessness.
HANS VON HENTIG
quite an interesting chapter to discuss, entitled: Fearlessness by fear, or insensibility to deterrent means by an excess of deterrence around the living being . . . but we must hurry on.
It is a well known fact that the higher ideas, such as religious, social, national concepts tend to take root deeply. They take in many men possession of the whole personality, supplant the strong-est vital impulses and fill the vacuum thus created with their dic-tatorial control.
Society and State know this experience and exploit it. The whole military drill is intended to build up a combination of au-tomatisms and powerful ideas that are able to overcome the ma-terial forms of deterrence, spit forth by a firing battery. The State is mostly successful in this task, although a modern cannon is a far
greater danger than the death-threat of a criminal code.
Religious ideas have proved to be a perfect anti-fear drug. The great religious systems depreciate this world and all that could happen in it by establishing a future and compensating life. De-terrence is re-formed into an attractive power.
No great revolution would ever have occurred without the chloroforming effect of some social reform ideas. The revolution-ary extravagance, its fearlessness and suicidal vehemence are just the forces that strike dumb the representatives of neace and order. The honest citizen is apt to be frightened and deterred; the born rebel acts under a helpful narcosis and deters his opponents by being untouched by any kinds of deterrence.
II.
A last strange phenomenon is the diminished or rather differ-ent intimidability of the child and the woman. Children are more afraid of darkness, animals, dream-figures and imaginary creatures than of actual harm and really dangerous situations, and so are women.2 Sentence a woman to three mice, and it will be a greater
penalty to her than three months.
I cannot forget the episode of how Anne Boleyn, one of the wives of Henry VIII, died. Knighton, the Constable of the Tower, writing to Cromwell, narrates:
"I told her," he says in telling how she demeaned the day before," it should be no payne, it was so suttel, and then she said: 'I have heard the executioner was very good, and I have a lyttel necke, and put her hand about it lawying (laughing) hartely.' I have seen many men and also women executed; and to my knowl-edge thys lady hasse much joy and pelsur to dethe."'
To understand this willingness to die, we must remember that Anne Boleyn had been previously married to a man like Henry VIII.
IV.
We discussed the dauntlessness of the desperate man. We may well consider this state as a transition to pathological conditions of impassability to menace and danger.
Leaving aside the insanes who are partly non-responsive to danger-situations, there remains the large group of feeble-minded. They may be frightened by concrete and immediate events, but they exhibit no fear of an anticipatory nature. As long as no agent of harm is confronting them, no alarm is shown. The criminal law, as a long-distance danger, does not affect them. The criminal seems to be in part a human specimen, whose appetites and desires are irresistibly attracted by a near object.
"The profit," it has been said, "of a crime is the force which urges a man to delinquency. The pain of the punishment is the force, employed to restrain him from it. We must then see to it that the second of these forces is the. greater, otherwise the crime will be committed."
2See Arthur T. Jersild and Frances B. Holmes, Children Fears, New York,
1935, p. 62.
3 W. W. Hutchings, London Town, Past and Present, London, 1909, vol. 1,
HANS VON HENTIG
These words of Bentham4 appear to be unreal and simple-minded, when we think of the enormous multiformity and compli-cation of life. Remember the great fearless-making poison, the alcohol or other intoxicants such as cocaine or marihuana; think finally of all the people with a sickly sense of self-preservation, to whom punishment is not "pain" according to the common formula, but something they long for.
When hundreds of thousands kill themselves yearly and thus apply to themselves the severest of all penalties, when equal num-bers attempt suicide and many more wish for courage to do so, you will realize, that the principle of deterrence has its limits, be-cause human nature is not under all circumstances and at all events responsive to the menace of punishment.
IV.
Besides the inborn or acquired indifference to danger-situa-tions there exist other complicadanger-situa-tions.
I indicate them as short as possible.
First, we observe that a certain penalty, such as the torment of hell, does not restrain religious minded people from criminal acts. All the more we should not expect that the state-punishment can possibly frighten the experienced criminal. What we do know is that the detection rate of the serious crimes is rather low. Crime pays, as far as the theory of probabilities is concerned, and no movie-propaganda can alter the true picture. The criminal is much better acquainted with the inefficiency of our detection-machinery than professors of criminology or social statistics. Undetected
crimes do not add to the deterrence of severe laws.
The retreating, secondly, the avoiding, dodging, shrinking of the frightened individual represents only one of many reactions of the threatened individual. There are other shifts: seeking for help or protection, for example. The criminal does not cry for help of mother, like the child when it is scared, but he relies on the formation of gangs or on "fixing" cases. He does not retreat, he improves his technique and gets away with it.
A third form of behavior when menaced is protective aggres-sion. A new criminality is created by excessive deterrence, and superimposed n- 'he primary criminal reactions. The girl is raped
4 Quoted from Charles Milner Atkinson, Jeremy Bentham. His Life and His
and strangled. The robbed man is shot. Arrest is resisted by force, and even in prisons criminal deeds are perpetrated such as riots, breaks, assaults, killings.
A last effect must not be overlooked. Deterrent laws, deterrent couit practices and deterrent police methods, the convenient and poor philosophy of shootings breed brutal criminals and spread in-difference to human life into the veins of the masses. If history has one lesson to teach us, it is this: the brutalized multitude will sooner or later hit back at its teacher and model, and rest assured it will be an adaptive pupil.
Deterrence is thus a principle that should be handled with ut-most prudence. The human mind is living matter, and it responds
ic continuous pressure with callosity and callousness. The man
can be made unridable as a mule by wrong treatment. Make him touchy and you govern him like a sensitive horse with gentle and easily reinforced expedients.
By such mild expedients I have tried-successfully I
hope-to deter you from deterrence.
